A construction worker who lost a case against a major firm that admitted blacklisting him for union activities and raising health and safety concerns may go to the European Court of Human Rights, arguing that UK law does not sufficiently protect agency workers.
 
Sitting on 20 January, the Central London Employment Tribunal ruled against Dave Smith, 46, who had worked in the past through an employment agency for respondents in the hearing, Carillion (JM) Ltd and Schal International Ltd (a wholly-owned subsidiary of Carillion). Despite the fact that the companies agreed, before the hearing, a joint statement of facts with Mr Smith, in which they stated that they had blacklisted him, the Tribunal found that because Mr Smith was not a direct employee of the companies, he could not win the case.
 
The extent of blacklisting of workers in the construction industry by some of its major players came to light in early 2009, following a raid by the Information Commissioner’s Office on a West Midlands-based firm called The Consulting Association. The firm charged construction employers to subscribe to its database containing the personal details of ‘’troublesome” workers.
 
At the Tribunal last week, Carillion (JM) Ltd, Schal International Ltd and Tarmac Construction (a forerunner of Carillion), agreed that their managers had supplied information about Mr Smith to the Consulting Association. A secret blacklist file collated by the Consulting Association and presented to the court contained Mr Smith’s photograph, address, National Insurance number, car registration, union credentials, and information on his family. It also contained details of occasions on which he had raised concerns about poor toilet facilities and asbestos on building sites.
 
For his part, Mr Smith agreed that he was not a direct employee of any of the respondent companies but worked via employment agencies. It is on this technicality that the Tribunal ruled against Mr Smith. The Tribunal has yet to publish its decision, which will shed more light on the exact bases on which it was reached, but as there were no written contracts between the three parties in the employment relationship – Mr Smith, Carillion, and the employment agency – the crux of the matter is whether or not Mr Smith was an employee, and therefore could be protected.
 
SHP understands that, should the Tribunal decision reveal that he lost categorically on this point, Mr Smith is likely to take his case to the European Court of Human Rights, where the rights of all workers are equally protected.
 
Speaking after the decision outside the court, he said: “The blacklisting conspiracy is a deliberate breach of human rights by big business. Human rights are supposed to apply to everyone but Carillion and their subsidiaries have got away with systematic abuse of power simply because I was an agency worker. If the British justice system does not protect workers’ rights then we will be taking our case to Strasbourg.”
 
The number of temporary and contract staff in the workplace in general has soared as a result of the economic downturn, with figures from the Office for National Statistics showing that self-employment hit a record high of 4.14 million in autumn 2011. According to agency body the Recruitment and Employment Confederation, the market for temporary workers is now more robust than that for permanent, full-time hires.
 
Its head of policy, Gillian Econopouly, said: “This will have implications, for employers workers, and for Government policy. One major challenge is to provide independent freelancers and contractors with some form of support network.”
 
During the Tribunal hearing, it also emerged that information was supplied to the Consulting Association on professionals operating in other industries. Giving evidence, Dave Clancy, investigations manager at the Information Commissioner’s Office and the man who led the raid on the company’s offices, said: “There is information on the Consulting Association files that I believe could only be supplied by the Police or the security services.”
 
He told the court that blacklist files on elected politicians, journalists, academics and lawyers had been found.
 
These revelations were described by Labour MP John McDonnell as “truly shocking” and worthy of a “detailed and open public investigation”. He added: “[This] scandal is one of the worst cases of organised human-rights abuse ever in the UK.  I am calling upon the Government to launch a public inquiry into the full extent and impact on people’s lives of blacklisting.”
 
In November 2010, an employment tribunal awarded Unite member Phil Willis more than £18,000 in damages after ruling that he had been blacklisted by construction firm CB&I for his union activities.

A group of around 100 blacklisted workers is currently compiling a ‘class action’ to be brought in the High Court in the next few months.